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Relocation under TUPE did not amount to constructive dismissal

The Employment Appeal Tribunal (EAT) has recently decided in Cetinsoy and others -v- London United Busways Ltd, on whether a relocation of employees’ normal working location entitled the claimants to claim constructive dismissal or a claim under TUPE 2006.

By way of a recap, TUPE 2006 treats an employee’s resignation in response to a transfer to be a dismissal where it is in response to a substantial change to the employee’s working conditions to their material detriment.

Cetinsoy and others were bus drivers and were transferred to another depot, because of a TUPE transfer, three and half miles away. This added thirty to sixty minutes to their commute each day.

The employees resigned and claimed that the relocation was:

a breach of contract and that they had been constructively dismissed; or in the alternative

it was a substantial change to their working conditions and this resulted in a material detriment entitling them to resign and be treated as being dismissed.

The EAT dismissed their claims because:

the increase of thirty to sixty minutes was not substantial;

it was not reasonable for the claimants to believe the extra time was substantial, particularly when compared against the prospect of losing their jobs; and

the new depot was at the most convenient location in contrast to the others.

In contrast, the EAT did not reach the same decision in Abellio London -v- Musse [2012]. This case had near identical facts except for the relocation was six miles away, the EAT held that it did amount to a substantial change to the drivers working conditions, to their material detriment, and so they could be treated as being dismissed and entitled to compensation accordingly.

Both of these cases show that each TUPE relocation situation will be decided by a case by case basis, even where a case of a similar nature has previously gone one way or another.